Ontario’s top court rejected arguments that condom use is a sure fire way to prevent transmission of the virus that can lead to AIDS, upholding an aggravated assault conviction against an HIV-positive man who had protected intercourse with three women without telling them about his health status. Condoms are shown in Montreal, Nov. 30, 2006. THE CANADIAN PRESS/ Adrian Wyld

Canadian man with HIV still guilty of aggravated sex assault despite condom use

Court said women may not have been as careful as they did not know the diagnosis

An HIV-positive man who had protected intercourse with three women without telling them about his health status has had his aggravated sexual assault conviction upheld.

In dismissing his appeal, Ontario’s top court rejected arguments that condom use is a sure fire way to prevent transmission of the virus that can lead to AIDS.

“There is no dispute that a perfectly functioning latex condom provides a perfect barrier to HIV transmission,” the Appeal Court said. “(But) condoms do not always work as they are intended to work.”

For one thing, the court said, if a person is unaware of the risk, he or she may also not be as vigilant when using a condom.

Trial evidence was that the man, identified only as N.G., had been warned in October 2013 to tell prospective partners he was HIV-positive. He failed to do so, despite having repeated sex with the three women over several months.

They complained they would not have had intercourse with him had they known. One contracted HIV after sex with N.G., but it’s not known whether he infected her. Another said she felt suicidal while awaiting test results.

At trial, N.G. argued condom use made HIV transmission impossible. However, Superior Court Justice Edward Gareau rejected the argument in November 2017. While condoms can prevent HIV transmission, Gareau found they are only 80 to 85 per cent effective in real world circumstances.

READ MORE: Sentencing date set for Chilliwack man who failed to disclose HIV-positive status to partner

Citing a 2012 Supreme Court of Canada ruling known as Mabior, the judge found a “realistic possibility” of HIV transmission existed when N.G., who was highly contagious, was having sex with the women. The 2012 ruling also made it clear that the failure to tell a partner about one’s status amounted to legal “fraud” that negated consent to sex.

Gareau convicted the accused but before sentencing him to 42 months, N.G. tried to reopen the trial by arguing the Supreme Court jurisprudence should be modified. He called in one expert on whom the top court had previous relied, Dr. John Smith from Winnipeg. Smith testified his thinking on condom use had evolved in recent years.

“An individual who always uses a condom and is careful in its use can be almost 100 per cent sure that the HIV virus will not be transmitted,” Smith said.

Interveners such as the HIV Legal Network also argued proper condom use alone should be enough to remove a “realistic possibility” of transmission for criminal law purposes.

Both Gareau and the Appeal Court rejected the assertion given the potential for condom failure.

“The Mabior decision reflects the Supreme Court’s appreciation for the fact that perfectly operating latex condoms provide a perfect barrier to the transmission of HIV,” the Appeal Court said. “It also reflects the court’s understanding that sex happens in the real world and that, in that world, human error and condom failure are concerns across the population.”

In this case, the appellate court said, N.G. had intercourse with the women at a time his viral load — a strong indicator of infectiousness — was not low. Wearing a condom did not definitively rule out a realistic possibility of HIV transmission, it said.

The interveners also argued that criminalizing people with HIV who use condoms is bad public policy and only adds to their stigmatization. While the issue might one day be reconsidered, the Appeal Court found no reason to do so in the current case.

Colin Perkel, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

HIV/AIDS

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Almost half of Canadian university students fear they cannot pay rising tuitions

COVID-19 also diminishing expectations for job market

Saanich’s autumn full-moon lantern celebration shifts to drive-thru

Harvest Moon event takes place Sept. 26 in Gordon Head

Voting now ready for Arts Alive 2020 sculptures

Audio and written descriptions posted for all 10 sculptures

Three years for serial bank robber who hit Sidney branch

Lucas Bradwell was wanted for robberies in Sidney, Abbotsford and Vancouver

New report finds ‘chronic’ shortage of daycare spaces across Greater Victoria

Sidney meets 52 per cent of demand, the best figure for six surveyed communities

B.C.’s top doctor thanks supporters after revealing threats over COVID-19 measures

Dr. Bonnie Henry says COVID-19 has caused some people to lash out in anger and frustration out of fear

POLL: Do you agree with the decision to call a provincial election for Oct. 24?

British Columbians will put their social distancing skills to the test when… Continue reading

Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

97 distressed horses, cats and dogs seized from farm in Princeton

RCMP assisted as BC SPCA executed search warrant

NDP, Greens divided on pace of child care improvements in B.C. election campaign

NDP Leader John Horgan recommitted to $10-a-day child care and blamed the Greens for not supporting his efforts

Rare fish washes onto Whiffin Spit in Sooke

Deep water fish identified as ‘King-of-the-salmon’

BC Liberal Leader talks drug addiction in the Lower Mainland

Drug addiction and public safety a top priority says Andrew Wilkinson

Island Corridor Foundation launches survey on importance of Vancouver Island rail

“ICF remains 100 per cent committed to the restoration of full rail service on Vancouver Island”

Most Read